Encarnacion and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship)

This matter concerned an application for Australian citizenship by descent made by Angela Encarnacion, the applicant, who was born in the Philippines in 1992. The applicant contended that her late father, Gerald Norman Richardson, was an Australian citizen at the time of her birth. A delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs refused the application, finding insufficient evidence of a biological link or parent-child relationship between the applicant and Mr Richardson at the time of her birth. The applicant sought review of this decision before the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant was eligible to become an Australian citizen by descent, specifically whether a parent of the applicant was an Australian citizen at the time of her birth, as required by subsection 16(2) of the *Australian Citizenship Act 2007* (Cth). This required the Tribunal to determine if the evidence supported the applicant's assertion that Mr Richardson was her biological father and an Australian citizen at the relevant time.

The Tribunal considered various pieces of evidence, including the applicant's birth certificate listing Mr Richardson as her father, statements from the applicant and her mother, and the results of a DNA sibship test between the applicant and Mr Richardson's daughter, which were inconclusive. The Tribunal found Marina Encarnacion's account of her relationship with Mr Richardson and the circumstances of her pregnancy plausible, particularly noting that she fell pregnant in Australia in April 1991 while travelling with Mr Richardson, and the applicant was born in January 1992. The Tribunal was satisfied that Marina Encarnacion fell pregnant while in Australia with Mr Richardson, which strongly supported him being the biological father. Despite the late registration of the birth and the inconclusive DNA results, the Tribunal was satisfied that the applicant had an Australian citizen parent at the time of her birth.

Consequently, the Tribunal set aside the delegate's decision and remitted the matter to the respondent for reconsideration with a direction that the applicant meets the requirements of subsection 16(2) of the *Australian Citizenship Act 2007*.